AHP v MP - [2008] QSC 217

SUPREME COURT OF QUEENSLAND

CITATION:

AHP v MP [2008] QSC 217

PARTIES:

AHP

(applicant)

V

MP

(respondent)

FILE NO/S:

D 2047/07

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Transferred from District Court Brisbane

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2008; further affidavits and written submissions filed 15 August 2008

JUDGES:

White J

ORDER:

1.          The parties’ property described in these reasons as the second unit property and being more particularly described as Lot 34 on Building Unit Plan of Resubdivision 104285, County of Stanley, Parish of North Brisbane, Title Reference 50134034 be vested in Matthew James Rouse as trustee for sale on the same terms as a statutory trustee for sale defined in section 37A of the Property Law Act 1974. Such property to be sold by the trustee and the net proceeds of such sale, after discharge of any mortgage, rates and body corporate fees, payment of expenses of sale (including real estate agent’s and trustee’s fees and expenses and reasonable legal costs of sale) be distributed as follows:

§ first in payment of the parties’ Commonwealth Bank of Australia credit lines;

§ second in payment of the parties’ Commonwealth Bank of Australia margin loan;

§ third, the balance to be equally distributed between the parties, subject to Order 7 hereof.

2.          The respondent’s right, title and interest in and to the parties’ property described in these reasons as the third unit property and being more particularly described as Lot 11 on Building Unit Plan 5222, County of Stanley, Parish of North Brisbane, Title Reference 16356154 be transferred to the applicant.

3.          The respondent’s right, title and interest in and to the following shares jointly owned by the parties be transferred to the applicant:

(i)         National Australia Bank;

(ii)       Virgin Blue.

4.          The applicant be authorised to execute all documents and do all things necessary to effect the transfers in Orders 2 and 3 hereof on behalf of the respondent.

5.          The applicant indemnify and keep indemnified the respondent in respect of the mortgage and any other liabilities in respect of the property referred to in Order 2 hereof.

6.          Save as aforesaid each party retain all other property, real and personal, in that party’s name, possession or under that party’s control.

7.          The respondent pay to the applicant $6,250 towards his costs of and incidental to this application which may be withheld from the respondent’s share of the proceeds of sale referred to in Order 2.

8.          In the absence of information about any other appropriate address service of this Order and these reasons may be effected as directed by Robin QC DCJ on 30 January 2008.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – the applicant seeks orders under Part 19 of the Property Law Act 1974 (Qld)– the respondent has left Australia and has not responded to requests to reach informal settlement or to participate in this application –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AHP v MP

Details

AGLC: AHP v MP [2008] QSC 217
Case: [2008] QSC 217
Decision Date: 12 September 2008

CaseChat Overview and Summary

The applicant, AHP, applied to the Queensland Supreme Court under Part 19 of the Property Law Act 1974 (Qld) for an adjustment of property interests following the termination of a de facto relationship with the respondent, MP. The applicant sought orders for the distribution of real and personal property, and for the respondent to contribute towards the applicant's costs of the application. The respondent had left Australia and had not responded to requests to reach an informal settlement or participate in the application. The court was required to determine whether it should make orders for the distribution of the parties' property, and if so, what orders should be made. The court was also required to decide whether an order should be made for the costs of the application.

The court noted that the applicant had provided evidence of the parties' relationship, including the acquisition and use of property during the relationship. The court found that the applicant was entitled to an adjustment of property interests under the Property Law Act. The court made orders for the distribution of the parties' property, vesting certain property in a trustee for sale, transferring other property to the applicant, and requiring the applicant to indemnify the respondent for certain liabilities. The court also made an order for the respondent to contribute towards the applicant's costs of the application.

The final orders of the court included vesting certain property in a trustee for sale, transferring other property to the applicant, authorising the applicant to execute documents necessary to effect the transfers, indemnifying the respondent for certain liabilities, and requiring the respondent to contribute towards the applicant's costs of the application. The court noted that service of the orders and reasons could be effected as directed by the Chief Justice.

Orders

Orders of the court

1. The parties’ property described in these reasons as the second unit property and being more particularly described as Lot 34 on Building Unit Plan of Resubdivision 104285, County of Stanley, Parish of North Brisbane, Title Reference 50134034 be vested in Matthew James Rouse as trustee for sale on the same terms as a statutory trustee for sale defined in section 37A of the Property Law Act 1974. Such property to be sold by the trustee and the net proceeds of such sale, after discharge of any mortgage, rates and body corporate fees, payment of expenses of sale (including real estate agent’s and trustee’s fees and expenses and reasonable legal costs of sale) be distributed as follows:

§ first in payment of the parties’ Commonwealth Bank of Australia credit lines;

§ second in payment of the parties’ Commonwealth Bank of Australia margin loan;

§ third, the balance to be equally distributed between the parties, subject to Order 7 hereof.

2. The respondent’s right, title and interest in and to the parties’ property described in these reasons as the third unit property and being more particularly described as Lot 11 on Building Unit Plan 5222, County of Stanley, Parish of North Brisbane, Title Reference 16356154 be transferred to the applicant.

3. The respondent’s right, title and interest in and to the following shares jointly owned by the parties be transferred to the applicant:

(i) National Australia Bank;

(ii) Virgin Blue.

4. The applicant be authorised to execute all documents and do all things necessary to effect the transfers in Orders 2 and 3 hereof on behalf of the respondent.

5. The applicant indemnify and keep indemnified the respondent in respect of the mortgage and any other liabilities in respect of the property referred to in Order 2 hereof.

6. Save as aforesaid each party retain all other property, real and personal, in that party’s name, possession or under that party’s control.

7. The respondent pay to the applicant $6,250 towards his costs of and incidental to this application which may be withheld from the respondent’s share of the proceeds of sale referred to in Order 2.

8. In the absence of information about any other appropriate address service of this Order and these reasons may be effected as directed by Robin QC DCJ on 30 January 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AHP v MP [2008] QSC 217
PARTIES:	AHP (applicant) V MP (respondent)
FILE NO/S:	D 2047/07
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Transferred from District Court Brisbane
DELIVERED ON:	12 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 August 2008; further affidavits and written submissions filed 15 August 2008
JUDGES:	White J
ORDER:	1. The parties’ property described in these reasons as the second unit property and being more particularly described as Lot 34 on Building Unit Plan of Resubdivision 104285, County of Stanley, Parish of North Brisbane, Title Reference 50134034 be vested in Matthew James Rouse as trustee for sale on the same terms as a statutory trustee for sale defined in section 37A of the Property Law Act 1974. Such property to be sold by the trustee and the net proceeds of such sale, after discharge of any mortgage, rates and body corporate fees, payment of expenses of sale (including real estate agent’s and trustee’s fees and expenses and reasonable legal costs of sale) be distributed as follows: § first in payment of the parties’ Commonwealth Bank of Australia credit lines; § second in payment of the parties’ Commonwealth Bank of Australia margin loan; § third, the balance to be equally distributed between the parties, subject to Order 7 hereof. 2. The respondent’s right, title and interest in and to the parties’ property described in these reasons as the third unit property and being more particularly described as Lot 11 on Building Unit Plan 5222, County of Stanley, Parish of North Brisbane, Title Reference 16356154 be transferred to the applicant. 3. The respondent’s right, title and interest in and to the following shares jointly owned by the parties be transferred to the applicant: (i) National Australia Bank; (ii) Virgin Blue. 4. The applicant be authorised to execute all documents and do all things necessary to effect the transfers in Orders 2 and 3 hereof on behalf of the respondent. 5. The applicant indemnify and keep indemnified the respondent in respect of the mortgage and any other liabilities in respect of the property referred to in Order 2 hereof. 6. Save as aforesaid each party retain all other property, real and personal, in that party’s name, possession or under that party’s control. 7. The respondent pay to the applicant $6,250 towards his costs of and incidental to this application which may be withheld from the respondent’s share of the proceeds of sale referred to in Order 2. 8. In the absence of information about any other appropriate address service of this Order and these reasons may be effected as directed by Robin QC DCJ on 30 January 2008.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – the applicant seeks orders under Part 19 of the Property Law Act 1974 (Qld)– the respondent has left Australia and has not responded to requests to reach informal settlement or to participate in this application –…